Procedural fairness in fair work laws

This passage from a Fair Work Commission decision sets out the basic elements of what is often referred to as “procedural fairness”, without which the termination of the employment of an employee may often be regarded as relevantly unfair.

“Notification of the reason and an opportunity to respond

[37] At a general level, the case law makes it plain that when it comes providing an

opportunity to respond, the process does not require any degree of formality, and that the

requirement is to be applied in a practical way in order to ensure that the employee is treated

fairly.

46

It is accepted that where an employee is aware of the precise nature of the employer’s

concern about his or her conduct or performance and has a full opportunity to respond to this

concern, this is enough to satisfy the requirements of the sub-section.47

 

[38] Turning to whether the Applicant was afforded an opportunity to respond to the

allegations and to ‘Show Cause’ why he should not be dismissed, I consider that the Applicant

was notified of the reasons for dismissal and was given an adequate opportunity to respond to

such reasons.48

 

[39] First, the Applicant was interviewed as part of the investigation on 8 November 2022

and a written response permitted.

[40] Second, by letter of 9 December 2022, the Applicant was advised of the outcome of the

investigation, including the allegations that had been substantiated, the breaches of relevant

policies and that a meeting would be held on 12 December 2022 to communicate the proposed

disciplinary outcome.49

[41] Third, Justin Seal (Seal), People Manager Offshore, and Vitanza met with the Applicant

on 12 or 13 December 2022,50 the purpose of the meeting, said Hawtin, was to discuss the

proposed disciplinary outcome of termination of employment, and why it should not be

applied.51

[42] On 13 December 2022, Hawtin held a debrief teleconference with Vitanza, Seal and

Michele Bardy, who substantively held the role of Acting Vice President Production

Operations.52

Hawtin said that Vitanza and Seal disclosed:

  1. a) they had met with the Applicant and his support person on the morning of 13

December 2022;

  1. b) they had followed the Respondent’s usual process of communicating the allegations

and findings to the Applicant;

  1. c) they had asked the Applicant for a response and if he had any mitigating reasons as

to why he sent the text message; and

  1. d) the Applicant’s feedback was that he had no mitigating reasons for his conduct.53

[43] In all the circumstances, I have found that the Applicant was notified of the valid reason

and provided with a meaningful opportunity to respond. Whilst there was perhaps a suggestion

that Hawtin had predetermined the disciplinary outcome, the evidence is unsupportive of a

finding that the Respondent predetermined the disciplinary outcome before providing the

Applicant with a meaningful opportunity to respond.

54

 

[2023] FWC 975

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Support person

[44] It is evident from the letter of 9 December 2022 and Mr Michael Quinn’s (Quinn)

attendance at the meeting on 12 December 202, that the Applicant was not denied the

opportunity to have a support person present at the disciplinary meeting. It is noted that the

same Quinn of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)

represented the Applicant at hearing.”

 

Faccin v Santos WA Energy Ltd [2023] FWC 975 delivered 13 June 2023 per Beaumont DP